A crusade against the Internet’s “regulatory uncertainty”

Both foes and friends of the FCC's proposed net neutrality rules say they want …

"Our doubts are traitors, and make us lose the good we oft might win, by fearing to attempt." —William Shakespeare, Measure for Measure

There is a great menace roaming about telecommunications land. All worthy companies fear the thing and urge its banishment. Armies of lawyers, economists, and politicians watch the distant hills for its shadow and sound the alarm upon the first sign of its appearance.

The fiend has a name: it is called "uncertainty," especially the regulatory kind. It must be stopped at all costs, cry the ISPs and their allies, especially the uncertainty that comes in the form of a proposed Internet non-discrimination rule.

"The uncertainties and other harms resulting from the rule will only multiply going forward," writes Verizon to the Federal Communications Commission. "The combination of the prohibitions in the rule and the array of uncertainties it would create would lead to less innovation and competition."

Amen, declares the U.S. Chamber of Commerce, which says that the FCC must refrain from imposing "a new, burdensome regulatory regime on broadband Internet access service providers that would create regulatory uncertainty. Given these turbulent economic times and the enormous cost of building out broadband infrastructure, the United States cannot afford policies that would hinder private sector investment in this critical technology."

By contrast

As these parties sound the alarm, other powerful voices claim the opposite—that the absence of net neutrality rules will bring on this terrible condition. Given Comcast's P2P blocking antics and the Apple-rejecting-Google Voice episode, the FCC must act as soon as possible, counsels Google.

"There is increasing uncertainty about whether particular practices, such as blocking of applications on wireless handsets, are permissible," the search engine giant warns. "Rather than continued uncertainty, the Commission should establish clearly to whom the rules apply, and what conduct is proscribed or permitted."

Open Internet rules "would provide the regulatory certainty necessary for [Sony] to continue its investments in Internet-delivered content, services and applications," the company pleads. "By contrast, the absence of regulatory certainty caused by D.C. Circuit's recent decision in Comcast v. FCC undermines incentives for continued investment and job creation."

But wait . . . what's this?? Sometimes proponents and opponents of net neutrality provisions team up to tell the FCC that, no matter how much they disagree on the issue at hand, on one point they concur: The U-Beast Must Die.

"We would support a framework that ensures that regulatory uncertainty and the risk of harsh penalties do not chill innovation or prevent providers of from managing their networks or offering their services in reasonable ways," wrote Verizon and Google together in a joint filing on the Open Internet question.

Whatever your position on a neutral net, perhaps you can summon up some sympathy for the FCC here. Whose uncertainties should the Commission make more certain? For which side should the agency go forth and make the rough places smooth?

Having suffered

The problem gets even worse. Almost everyone who comes before the FCC wants the Commission to exorcise regulatory uncertainty from the corpus, regardless of the issue. In the recent proceeding to open the 2.3GHz Wireless Communications Service zone to wireless broadband (now hopefully resolved), the longstanding problem involved resolving interference issues with Sirius XM satellite licenses.

"Having suffered through more than a decade of regulatory uncertainty," wrote the organization representing wireless license holders, "the WCS Coalition fully supports the adoption of technical and service rules within the next two months that permit the WCS band to be put to its highest and best uses." The coalition includes Comcast and AT&T/BellSouth.

Baloney, responded Sirius. There was nothing stopping these companies from launching WiMAX on that band. "Having created their own regulatory uncertainty, WCS licensees have the temerity to rely on that uncertainty for their failure to provide service over their spectrum," Sirius wrote. "Sirius XM understands regulatory uncertainties. Operating under similar uncertainties and no formal repeater rules since its inception, Sirius XM has nonetheless spent more than $10 billion to build out its spectrum, developing a thriving business serving millions of customers."

Current and future

But the mother of all uncertainty battles is playing out over how to get the wireless industry more spectrum licenses.

The FCC's National Broadband Plan calls for the agency to find ways to encourage broadcasters to sell the wireless industry their spectrum through "incentive auctions." The wireless companies say they face something even bigger than uncertainty; they're staring down a "looming spectrum crisis" if something isn't done. And even the FCC is sympathetic.

"Given current trends and future uncertainty, virtually all the major players in the wireless industry have stated on the record that more spectrum is needed," the agency's NBP notes.

"As the Commission develops the much needed National Broadband Plan that will ensure that all Americans, regardless of income and ethnicity, have affordable access to broadband in the near future," it must "explicitly confirm that broadcasters will not be at risk due to regulatory uncertainty," urges MGM Worldwide Television Distribution.

What's ironic about all this, of course, is that all these industries are endlessly in the public's face with speeches about the need for a "competitive marketplace," "robust competition," "bold innovation," and "risk taking." Then a day after the latest "thriving on uncertainty" innovation trade show, they're over at the FCC, the Federal Trade Commission, and the Department of Justice asking the government to make everything more predictable for them.

We suggest that telecommunications executives who seriously expect certitude in our time should do one of three things: go work for the IRS, open up a funeral parlor, or spend their days watching the Die Hard movies.

As for the rest of us, the words of Voltaire will suffice: "Doubt is not a pleasant condition, but certainty is absurd."

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.